A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Back to 500BC.
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Sunday, April 29, 2018
A tale of two past giants, two recent interviews, and a failed constitutional marriage
"We
must try and marry the two ideas – the Executive elected by the people
and the Parliament elected by the people." - J.R. Jayewardene
They haunt us still. Colvin R. de Silva and JR Jayewardene, that is:
they were two classmates, schoolmates and friendly boxing rivals, who
rose to colossal heights in this little country’s constitutional
evolution. JRJ won the ultimate political power in the late evening of
his long political life. Colvin never won power, but he was always
powerful and he would have been powerful anywhere. Colvin by the sheer
force of his personality, that included his formidable intellectual
prowess, exceptional persuasive skills and utmost patience to suffer
fools, presided over the dissolution of our ties to British monarchy
while preserving the parliamentary system that we got from the British
and made it the matrix of our political society. JRJ took over from
where Colvin left but he (JRJ) came to the game with the kind of
political power that no other Sri Lankan leader, either before or after
him, has ever received from the electorate.
To be sure, the scale of JRJ’s victory was more fortuitous than it was
the endorsement of his rather idiosyncratic agenda. But no matter how
political power landed on his lap, it gave him the wherewithal to put in
place a political scheme that until then had convinced no other Sri
Lankan political leader as suitable for the country except Mr.
Jayewardene himself. He changed Sri Lanka’s constitution, barely five
years old after Colvin had finished with it, to have an elected
executive President with an elected parliament. In his own words, as I
have quoted above, President Jayewardene wanted to marry the two. But
the marriage has not worked well at all. I would argue that it has been a
total failure and it is the parliament that is the poorer for it. The
two are too incompatible to cohabit. In the end, it is the parliament
that became redundant and eventually incompetent.
In fairness to JR Jayewardene, he was too much of a parliamentarian to
actually scheme for the withering away of parliament under the dominance
of the executive presidency. In fact, he categorically told Prof. AJ
Wilson that he (JRJ) was not in favour creating in Sri Lanka "the kind
of administrative state" as in France, where the French President has a
"bureau of overseeing administrators who initiate action, intervene in
ministries and coordinate policies" and virtually command key sections
of the government. In contrast, President Jayewardene told Wilson, "I
wish (the President) to have only his Prime Minister and the Cabinet of
Ministers as Advisers because they represent the people as Members of
Parliament."
But his intentions have been undone both by the provisions of his
constitution, and where they are not bad enough by the manner in which
his successors operated the constitution. The Prime Minister was reduced
to a peon, parliament was subordinated, and the President became not
only Head of State and Head of Government, but also Head of the Cabinet,
in a uniquely triple concentration of roles and powers. The marital
failure was not unanticipated. During the constituent assembly debates
in 1970 when JR Jayewardene first mooted the idea of an elected
president and elected parliament, Dr. Colvin R. de Silva exposed the
inherent contradiction in the idea of the marriage, calling it a
‘redundant counter-posing’ of two elected agencies. Prophetic words,
they are as powerful as powerful institutions. And they haunt us still!
Current Parliamentary Incompetence
There were two news conferences last week that that shed plenty of light
on our current state of politics and what is likely to unfold in the
near future. The first was what I am tempted to call a swashbuckling
interview by the National Elections Commission (NEC) Chairman Mahinda
Deshapriya to the national media. Answering questions from probing and
even provoking journalists, Mr. Deshapriya laid bare the level of
incompetence to which our parliament has sunk. The pathetic procedural
delays over the Provincial Council election legislation are a sad
commentary on how parliament is being run on a day to day basis. The
parliament’s legislative savvy is now a national joke, after the results
of the local government elections in which the total number of elected
members in our local bodies ballooned from about 4,486 to 8,356 under
the new hybrid system of elections. Yet, no one in the cabinet or
legislature saw it coming until everyone saw it after the fact.
Mr. Deshapriya effortlessly shot down as "baseless" a journalist’s
seemingly omniscient query if the doubling of the number of elected
local government officials is the result of interventions by local NGOs
with foreign (government) funding. The NEC Chairman gave the chronology
of parliament’s labour in deciding the total number of elected
officials: it has been going on from 2012 (i.e. two to three years
before the ‘regime change’ that too is baselessly alleged to be the work
of foreign forces), was revisited in 2016 and 2018, was vetted by the
Supreme Court, and was passed in parliament by government and opposition
support. So, where are the foreign forces here, and who are they? Or,
for that matter, who and where are the foreign forces either in the
defeat of the no-confidence motion, or in the JVP’s proposed 20th
Amendment? When there is nothing else to pull for easy political
mileage, just pull out of thin air the bogey of foreign forces.
What is not clear to me in the local elections arithmetic is the basis
of the claim that such a huge increase was necessary because of the
change to ensure that 25% of the elected members in each authority are
women. Why was it necessary to increase the number of elected members in
each local authority to ensure women’s representation at 25%? Is it
because someone did not want to reduce the number of seats available to
men in order to give legitimate representation to women who are more
than half the population? That’s a funny, or perhaps not so funny, how
do you do? Even then, there was no need to virtually double the total
number of local council members in all local authorities. Is too much to
ask of Minister Faizer Mustapha, who is supposed to be a legal
luminary, to make a comprehensive statement in parliament, explain the
background to this local election fiasco, and outline how the government
is proposing to fix this while there is much public interest about it?
Gratifyingly, at least to this writer since I have been harping on it
from time to time, Chairman Deshapriya also took strong exception to the
tendentious ploy of elevating local elections to the status of a
national plebiscite. With folksy wisdom, he recalled how local elections
were held when we were young, when there was nothing of the kind of
national fuss or fanfare as there is now. Now, editorial commentators go
to town plying this ploy and legal luminaries rise on their hind legs
in the apex court to learnedly argue that nothing less than a fifth of
the national sovereignty is at stake in the local elections. A fifth,
because the Jayewardene Constitution divides sovereignty into five
parts: legislative, executive, judicial, fundamental rights and
franchise. No one bothers about the constitutional text that exclusively
ties the franchise to presidential and parliamentary elections and, of
course, the Referendum. Local government is important but its elections
are not an extension of the ‘sovereign franchise.’ Nor are they a
surrogate for national parliamentary elections.
The most insidious aspect of the new system is that the allocation of
60% of the seats in a local authority, to single-member or multi-member
wards, does not mean that the voters get to elect their ward members
directly. No, they are a constrained to mechanically vote for a party
and the contesting parties submit two lists, one for the 60% ward
members, and the other for the 40% PR numbers. Based on the number of
votes cast for each party, it is left the Election Commission officials
to determine the winners from ‘Ward’ list and the PR list. So it is the
political party leadership and bureaucracy that determines who will be
your ward member.
We can draw two lessons from Mr. Deshapriya’s interview and local
elections fiasco. First, our parliament doesn’t know what it is doing,
and, two, when it comes to elections it is the party machine that is
running the show and not the people who cast their vote. Based on them
we can also conclude that the current parliamentary incompetence and the
rise in the power of political party machinery are the direct results
of the failed marriage of the elected executive and the elected
parliament, and the corrupt system proportional representation that has
been for the parliamentary election.
The JVP News Conference
The second news conference was by JVP leader Anura Kumara Dissanayake,
who took the opportunity to explain the JVP’s proposal for a Private
Member’s Bill to amend the constitution for the twentieth time. Mr.
Dissanayake was necessarily open that the JVP needs to persuade and
canvass the support of all the parties in parliament because the JVP
alone with its six MPs cannot even get a debate on the bill going. The
JVP cannot and is not trying to pull a constitutional veil over anyone’s
eyes. But the JVP’s critics can and they are doing it with obfuscation
and slander.
It should be clear to everyone that there cannot be a total abolishment
of the presidency, simply because it is not possible to do so. But the
opponents of the 20th Amendment will have none of and will talk only
about abolishment and the vacuum it is going to create. All that the
20th Amendment can and must do is to redefine the relationship between
the President and the Parliament, which would invariably involve
redefining the roles and functions of the Head of State, the Head of
Government and the Cabinet of Ministers. The powers vested in the
President by the 1978 Constitution are simply incompatible with the
proper functioning of parliament. To wit:
Unlike in the American system which is based on the separation of
powers, the Sri Lankan President, until the 19th Amendment, and despite
the constitutional claims to separation of powers, exercised total
control over parliament. He could "summon, prorogue and dissolve
parliament" (Chapter 11, Article 70), and parliament would have no say
in it. Only the President, and not the Speaker, would certify a bill
passed by a referendum (11, 80). He can in his discretion submit for
ratification in a referendum a bill that has been defeated in Parliament
(13, 85(2)). It is the President who establishes and appoints members
of the Delimitation Commission that carries out the demarcation of
electoral districts for parliamentary elections (14, 95), and proclaims
by publication the names and boundaries of the demarcated districts (14,
97). And finally it is the President who appoints the Commissioner of
Elections with no input required from the cabinet or parliament (14, 103
(1)), although he can be removed by the President only upon an address
of Parliament (14, 103 (3)).
Again unlike under the French Constitution, the Sri Lankan Constitution,
until the 19th Amendment, thoroughly subordinated the Prime Minister
and the Cabinet of Ministers to the President. It was no more the Prime
Minister as head of the cabinet, being primus inter pares (first among
equals) that used to be the underpinning of cabinet government. Under
the Sri Lankan presidential system, the President, like the Roman
Emperor, became "princeps" or " dominus, vis-à-vis the Prime Minister
and the cabinet. According to AJ Wilson, the 1978 Constitution made the
president "far more powerful than a prime minister could have been under
the former system." Under different provisions of the constitution it
is the President who has sweeping powers over all major appointments in
the state machinery, with no accountability to parliament. These powers
have somewhat been reduced after the 19th Amendment.
Specifically, the President is only "responsible" to parliament, and not
answerable to it (8, 42) – a crucial difference, for AJ Wilson, who
also notes that the Standing Orders of the House do not permit any
censuring of the president or his actions by parliament. Although the
President is a member of the cabinet and is the Head of the cabinet, he
shall continue in office even when the cabinet stands dissolved (8, 42).
He wields unrestrained power to appoint and dismiss ministers and
assign responsibilities (8, 44); appoint ministers who can function
directly under him without being part of the cabinet (8, 45); and
appoint deputy ministers in consultation (a rare instance till the 19th
Amendment) with the Prime Minister (8, 46). Most importantly, the
President, till the 19th Amendment, could get rid of the Prime Minster
at whim (8, 47).
Further, under Article 8, 44 (2), the President can assign himself any
subject or function. In practice, this led to the presidents ‘usurping’
the Ministry of Finance. It started with President Premadasa, and was
picked up by Chandrika Kumaratunga and Mahinda Rajapaksa.The practice
continued even after the arrival of the yahapalanaya twosome, with the
difference that it was the Prime Minister, and not the President, who
usurped not the whole Ministry of Finance but just yanked the Central
Bank out of the Finance Ministry and brought it under his wings. That
set the stage for the now infamous bond scam and the saga continues with
the Interpol search for the former Governor of the Central Bank. There
could be a rebirth of the old scandal in parliament if Ravi Karunanyake
were to be reinstated as a Minister, in his capacity as the Assistant
Leader of the reformed (sic) UNP. Who knows? If that were to happen, it
must not be the executive presidency that should take the blame.